Industrial Storm Water: Enforcement Trends, Citizen Suits, and - - PowerPoint PPT Presentation

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Industrial Storm Water: Enforcement Trends, Citizen Suits, and - - PowerPoint PPT Presentation

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Industrial Storm Water: Enforcement Trends, Citizen Suits, and Lessons Learned Presented by Michael N. Mills Melissa A. Foster October 29, 2019 R OADMAP Industrial General Storm Water Permit (IGP) Current Permit and Recent

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Industrial Storm Water: Enforcement Trends, Citizen Suits, and Lessons Learned

Presented by Michael N. Mills Melissa A. Foster October 29, 2019

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ROADMAP

  • Industrial General Storm Water Permit (“IGP”)

– Current Permit and Recent Changes – Citizen Suit Case Studies – Lessons Learned: “We know a thing or two because we’ve seen a thing or two.”

  • Enforcement Summary
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IGP: CURRENT PERMIT

  • Permit in effect since July 1, 2015
  • Expanded scope to thousands more facilities than

were required to take action under the 1997 permit

  • Requires reporting via SMARTS public database
  • Allows public access to data
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IGP: 2020 AMENDMENTS

  • IGP amendment approved in November 2018
  • Amendments cover three items:

– Implementation of adopted Total Maximum Daily Loads (“TMDLs”) – Federal Sufficiently Sensitive Test Method Ruling – Statewide Compliance Options

  • Effective on July 1, 2020
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IGP: 2020 AMENDMENTS

  • Adoption of TMDL-specific Numeric Action Levels

(TNALs) and Numeric Effluent Limitations (NELs) applicable to discharges to water bodies for which industrial storm water waste load allocations (WLAs) have been assigned

  • “Responsible Dischargers” will be required to

comply with the new TMDL-specific discharge requirements

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IGP: 2020 AMENDMENTS

  • Source: State Board FAQs re IGP Amendment (Sept. 26, 2018)
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IGP: 2020 AMENDMENTS

  • Regions currently affected:

– Los Angeles (Region 4) – 26 TMDLs – San Diego (Region 9) – 7 TMDLs – Bay Area (Region 2) – 3 TMDLs – Santa Ana (Region 8) – 1 TMDL

  • Source: Attachment E to 2018 IGP Amendment
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IGP: 2020 AMENDMENTS

  • Incorporates federally required testing methods

adopted by EPA in 2014

  • Specifically, Dischargers must use analytical test

methods that are sufficiently sensitive to measure

  • r detect pollutants at or below the applicable

water quality criteria, action level, or effluent limitation

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IGP: 2020 AMENDMENTS

  • Compliance options incentivizing storm water

capture:

– On-site capture and use, and/or infiltration of industrial storm water discharges, up to and including the 85th percentile 24-hour daily storm volume; or – Participation in agreements to capture and use, and/or infiltrate industrial storm water discharges, up to and including the 85th percentile 24-hour daily storm volume, off-site as approved by the applicable RWQCB

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IGP: CITIZEN SUITS

  • “Any citizen” can sue for alleged IGP violations
  • Process and observations:

– 60-day Notice of Intent to Sue – Citizen suits used to acquire information about company operations

  • Site inspections
  • Document requests
  • Reports
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IGP: CITIZEN SUITS

  • “We know a thing or two because we’ve seen a thing
  • r two.”
  • First citizen suit in 1997 – California Sportfishing

Protection Alliance – challenging abandoned mining properties in the Sierra Foothills

– No SMARTS – Fewer suits

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IGP: CITIZEN SUIT CASE STUDIES

  • “Ripped from the headlines.”
  • Environmental Defense Center v. Vintage

Production California LLC, Case No. CV12-4030 JAK (SSx) (C.D. Cal.)

  • Newspaper article on hydraulic fracturing at the

Grubb-Rincon Oil Field

  • End result: Consent Decree with Commitment

that oil company would not use hydraulic fracturing in the oil field

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IGP: CITIZEN SUIT CASE STUDIES

  • “No good deed goes unpunished.”
  • San Joaquin Raptor Rescue Center and Protect

Our Water v. XYZ Manufacturing Co., LLC, Case

  • No. 1:18-cv-00522-DAD-SKO (E.D. Cal.)
  • Level 2 ERA and everything done according to

permit – publicly available on SMARTS

  • End result: Consent Decree with an Action Plan to

look over company’s shoulder

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IGP: CITIZEN SUIT CASE STUDIES

  • “Quid Pro Quo Harassment.”
  • Environmental Defense Center v. California

Resources Production Corporation, Case No. 2:16-cv-02325-GW-RAO (C.D. Cal.)

  • Trust for Public Lands attempting to secure

conservation easement over lands in which defendant owned mineral rights that could be developed in future

  • End result: Consent Decree with an option to later

acquire surface rights to limit mineral development

  • n unrelated lands
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IGP: CITIZEN SUIT CASE STUDIES

  • “If you can’t beat ’em, join ’em.”
  • Puget Soundkeeper Alliance v. Pierce County

Recycling, Composting and Disposal LLC, et al., Case No. C17-5731-BHS (W.D. Wash.)

  • Puget Soundkeeper brought suit concerning

violations at landfill that were difficult and costly to correct and refused to settle

  • End result: Brought matter to state regulators and

negotiated an agreed-upon order with the state that mooted most of the plaintiff’s action

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IGP: CITIZEN SUITS, LESSONS LEARNED

  • SMARTS exposes all of your dirty laundry to

potential plaintiffs

  • Know your enemies
  • If you are sued, try to find out what is motivating

the lawsuit – usually it is something besides your compliance with the IGP

  • Don’t be afraid to involve state regulators if you

are being extorted by an abuse of the citizen suit provision

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STATEWIDE ENFORCEMENT OVERVIEW FY 2017-18 (IGP & CGP)

  • # of Informal Actions: 1,381
  • # of Compliance Actions: 1,917
  • # of Penalty Actions: 60
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STATEWIDE ENFORCEMENT OVERVIEW FY 2017-18 (IGP & CGP)

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STATEWIDE ENFORCEMENT OVERVIEW FY 2017-18 (IGP & CGP)

  • Data Source: CIWQS and SMARTS Period:

July 1, 2017 to June 30, 2018

  • Unit of Measure: Number of enforcement actions

with an effective date during FY 2017-18 issued for violations of the Construction Storm Water permit and the Industrial Storm Water permit

  • Source (slides 17-19):

https://www.waterboards.ca.gov/about_us/performance_report_1718/enforce/31201_npdes_s w_enf_actions.html

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IGP: ENFORCEMENT OVERVIEW REGION 5 (07/01/18 – 06/30/19)

  • Statewide INDSTW violations from July 1, 2018 to

June 30, 2019: 1868

  • Central Valley Regional Board (Region 5)

violations: 324

– Sacramento (268), Redding (8), Fresno (48)

  • https://ciwqs.waterboards.ca.gov/ciwqs/readOnly/CiwqsReportServlet?inCommand=reset&rep
  • rtName=PublicVioSummaryReport [Search: region, INDSTW, date range 07/01/18 - 06/30/19;

accessed 10/27/19]

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IGP: ENFORCEMENT OVERVIEW, REGION 5 (07/01/18 – 06/30/19)

  • 289 are Class 3 violations for first time or

infrequent violators

– Pose a minor threat to water quality – Include statutorily required liability for late reporting

  • 22 are Class 2 violations

– Pose a moderate, indirect, or cumulative threat to water quality – Include negligent or inadvertent noncompliance with the potential to cause or allow the continuation

  • f unauthorized discharge or obscuring past

violations

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IGP: ENFORCEMENT OVERVIEW (07/01/19 – 09/30/19)

  • Statewide INDSTW violations from July 1, 2019 to

September 30, 2019: 446

  • Region 5 violations: 138

– All violations are within Region 5- Sacramento – 136 Class 3 violations – 2 Class 2 violations

  • Region 8 (Santa Ana) leads the State with 170 violations

– 165 Class 3 violations; 5 Class 2 violations

  • https://ciwqs.waterboards.ca.gov/ciwqs/readOnly/CiwqsReportServlet?inCommand=reset&reportName=PublicVioSu

mmaryReport [Search: region, INDSTW, date range 07/01/19 - 09/30/19; accessed 10/27/19]

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ADMINISTRATIVE CIVIL LIABILITY OVERVIEW

  • Online database allows you to search for active,

historical, withdrawn, or “all” ACL information by Program type (i.e., “INDSTW”, “CONSTW”, etc.)

  • For July 1, 2018- June 30, 2019:

– Pending/Completed INDSTW Statewide ACLs total $48,773 – Regions involved: Central Coast (Region 3); Santa Ana (Region 8)

  • https://ciwqs.waterboards.ca.gov/ciwqs/readOnly/summACLRepSearch.do [Search: All,

INDSTW, both; accessed 10/27/19]

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IGP: ACL OVERVIEW 07/01/18 - 06/30/19

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IGP: ACL OVERVIEW FY 2017-18

  • For July 1, 2017- June 30, 2018:

– Pending/Completed Statewide ACLs total just over $188,000 across 15 actions

  • $117,500 SEP is an additional component of a

Region 2 ACL – Regions involved: San Francisco (Region 2); Central Coast (Region 3); Los Angeles (Region 4); and Santa Ana (Region 8)

  • https://ciwqs.waterboards.ca.gov/ciwqs/readOnly/summACLRepSearch.do [Search: All, INDSTW, both;

accessed 10/27/19]

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IGP: ACL OVERVIEW FY 2017-18

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SWITCHING GEARS: CGP: THE NEXT ITERATION

  • Current Construction General Permit (CGP)
  • riginally took effect on July 1, 2010
  • Next round of CGP revisions will include

implementation of TMDLs

  • Fall/Winter 2019 - Anticipated release of proposed

revised CGP

  • Possible adoption of new permit after public

comment period, early 2020?

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CGP: THE NEXT ITERATION

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IGP: HOW CAN WE HELP?

  • Collaborate on strategy (attorney work product

confidentiality)

  • Carefully review all documents before filing with

SMARTS

  • If you receive a 60-day notice:

– contact your trusted advisors immediately (attorney, storm water professionals, etc.) – A valid lawsuit cannot be filed until the 60 days have passed so take the time to correct any violations and develop a strategy for a potential citizen suit

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CONTACT INFORMATION

Stoel Rives LLP 500 Capitol Mall, Suite 1600 Sacramento, CA 95814 P: 916.447.0700 F: 916.447.4781 michael.mills@stoel.com; 916.319.4642 melissa.foster@stoel.com; 916.319.4673